Does it really matter how you sign your name?

When signing legal documents, this question frequently comes up—how should I sign my name? There is not a black and white answer to this question, but here are some guidelines.

There are good reasons to sign your name on legal documents the same way your name is listed on government documents, such as your Social Security card or your Driver’s License. If the document is going to be notarized, a notary public may ask to see your identification card to identify you and compare signatures. The goal is to sign your name in a way that will avoid confusion.

There is no law that I am aware of that says you must sign your name a certain way. But title companies, banks and county assessor’s offices often get particular about how documents are signed, especially documents that transfer title to real property.

Below are some general rules that court clerks and title companies have suggested to me. I realize that sometimes these suggestions might conflict with each other. You can choose the one that fits your situation the best.

• Sign your name the way it is listed on government documents that identify you.
• Sign your name the same way that it is listed in the heading, the body of the document or the signature line.
• If you are signing a deed, sign your name the same way that it was written in the deed that transferred the property to you. Sometimes when your name has been written multiple ways on previous deeds, you can state your name and then state, “also known as”, then write your name the other ways that it was written previously.
• If you have a common name or the same name as a parent, use your full name, with your middle name, or Jr. or Sr. if applicable, to avoid confusion.

Generally speaking, a person is not going to escape liability, or on the other hand a contract or other legal document is not going to be invalidated because you didn’t use your full name, your name is misspelled, or you signed Bill Smith when your name is William Smith.

Signing your name as indicated above will avoid confusion and make it easier for title companies and assessor’s offices to verify your signature.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

October 2018

Separate Property May Become Community Property if it is commingled.

I recently received a call asking for clarification of a Senior Tip I wrote a few months ago. Below is the answer to the question. The call made me think that there may be others with questions that they would like answered. If you have a question that you would like me to address in a Senior Tip, you are welcome to call me or email me at tpacker@srv.net.

The previous Senior Tip discussed how community and separate property are treated differently under Idaho inheritance laws. The question that was asked was how do you know whether property is community property or separate property.

Here are the definitions of separate property and community property:

• All property the husband or wife owned before marriage, and all property acquired during the marriage by gift or inheritance, and any proceeds from this property, is considered separate property. (Idaho Code § 32-903)
• All other property acquired during the marriage by either husband or wife is community property. (Idaho Code § 32-906.)

Here are a few examples of the different ways separate and community property are treated under Idaho law:

• As to community property, the surviving spouse will inherit all the deceased spouse’s community property and ½ of the separate property. The other ½ of the separate property will pass to the surviving parents or children of the decedent. (Idaho Code § 32-102)
• The separate property of one spouse is not liable for the debts that the other spouse contracted before the marriage. (Idaho Code § 32-910-11)
• Either spouse alone can incur a debt that obligates their community property, but not the separate property of the other spouse. However, as to the community property, both spouses must sign to purchase or sell real property. (Idaho Code § 32-102)

If a husband or wife brings separate property into a marriage and commingles it either with the community property or the separate property of the other spouse, it may be converted into community property. For example, if you receive an inheritance, and you deposit the money into a community bank account it will become community property. If each spouse sells their home, and they buy a new home together with the proceeds of their sales, the new home will be community property.

You can give your separate property, or ½ of your community property to whomever you want after your death, but you must have a Will to do so. If you don’t have a Will, your property will be distributed by the laws of the state as explained above.

Many people, not understanding these laws, make decisions that produce results they did not intend.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

September 2018

Choosing to make a Will ensures your estate goes to whom you intend.

Some people don’t see the importance of making a Will. A Will is a written declaration of what will happen to a person’s money and property after they die.

Under Idaho inheritance laws, if a married person dies without a Will, the spouse inherits all the community property and half of the separate property. The remaining half of the separate property is inherited by the decedent’s children.

If, however, the decedent is single and has no children, the next in line to inherit would be the decedent’s living parents. If the parents are deceased, the decedent’s siblings would inherit the decedent’s property. If there are siblings, the estate is divided by the number of siblings, living and dead. Each living sibling receives one share. The share of a deceased sibling is divided equally between his or her children.

Sometimes people fail to make a Will, but verbally state to whom they want their property to go. A Court will not honor a verbal statement. If there is no Will, the inheritance laws must be followed.

I know of a situation where a man died, who had never married and had no children and whose parents were deceased. He told his siblings that he wanted them to have his estate, but he never wrote a Will. His estate ended up being divided among his nieces and nephews, to whom he had never intended to give any money or property.

In another situation, a couple had lived together for years, but never married. They never got around to making Wills and then one of them unexpectedly died. Sadly, the surviving partner inherited nothing. If the deceased partner had written a Will, she could have left everything to her partner.

Where there’s a Will, there’s a way for your property to go to those you intend. By creating a Will, your desires will be followed. You can name a Personal Representative to administer your estate, you can name a Guardian and Conservator for a minor or disabled child, and you can designate who will receive your estate.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

August 2018

Common-Law Marriages after 1996 are not recognized in Idaho.

Occasionally, I encounter couples that are living together, but have never gone through a formal marriage ceremony. This situation raises the issue of common-law marriage, which is widely misunderstood. Common-law marriages entered into before January 1, 1996 are recognized in Idaho. However, after January 1, 1996, Idaho does not recognize common-law marriage—consent to marry alone will not constitute a marriage; it must be followed by the issuance of a license and a solemnization ceremony. (Idaho Code  32-201)

If you are trying to prove that you have a common-law marriage, that was entered into prior to 1996, you would have to establish the following four requirements: (1) The man and the woman must both have been eighteen years of age or older; (2) they must have consented with each other to be husband and wife; (3) after they consented the parties both assumed marital rights, duties, and obligations to each other—this requires that they lived together as husband and wife, treated each other in a manner typical of married people, and held themselves out as husband and wife; and (4) this was done while living in the state of Idaho.

By abolishing common-law marriage in 1996, Idaho eliminated much of the uncertainty, ambiguity and inconsistencies that surrounded common-law marriage.

Living together in Idaho after 1996, without a solemnization of your marriage, may affect your eligibility for Social Security and Medicaid benefits. In addition, you will not inherit from your significant other unless they have made provisions for you in their Will.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

July 2018

If you have a small estate, you can deed your house and still be able to live there until you pass away, and avoid probate.

If you have a simple estate, you might want to consider passing your house, using a Gift Deed and retaining a life estate. This type of deed conveys your house to a person or persons and reserves to you, the Grantor, the right to live in the house for the rest of your life. The ownership in the property is divided into two interests: a life estate and a remainder interest. The person who holds the life estate has the right to possess the property during his or her lifetime. The person who has the remainder interest has the right to possess the property after the life tenant passes away.

Example: John Smith, in consideration of the love that he has for his daughter, Laura, conveys his house to her as her sole and separate property reserving and excepting to John the right to all rents and profits on the property and the right to use the property for as long as John lives. At John’s death, the house passes to Laura simply by recording a Death Certificate, without having to go through probate.

If you want to use a deed retaining a life estate, there are a couple of things you should know. First, once your have deeded the property retaining a life estate, you can no longer sell the property without the signature of the person holding the remainder interest. For example, a woman deeded her home to her daughter and retained a life estate. Later, she had a falling out with her daughter. She wanted to sell her home and move, however, her daughter refused to sign the deed, so the woman was unable to sell her home. Second, if you deed your home and retain a life estate and later apply for Medicaid, your life estate interest may be counted as an asset towards eligibility for Medicaid.

A Gift Deed retaining a life estate is a way to transfer your property without going through probate and still retain the use of the property during your life time. Make sure you understand the risks before using this type of deed.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

June 2018

Common sense, conscientiousness and honesty are the main requirements.

If you have been asked to be a Personal Representative, you may wonder what your responsibilities are. Essentially, your job is to gather and take care of the deceased person’s assets, pay valid debts and distribute what is left to the people who will inherit it. However, before you can act, you must file a petition with the Court to probate the estate and to be named the Personal Representative. The Court will issue Testamentary Letters to you—documents that evidence your authority to act on behalf of the deceased’s estate. During the administration of the estate, you may be required to present copies of these Letters to persons with whom you transact estate business.

You may have additional duties as the Personal Representative which might include setting up a bank account for the estate, paying current bills and completing a final tax return. You may also need to cancel services such as phone contracts and utility bills and notify Social Security and pensions.

In some cases, you may want to publish a Notice to Creditors in the local newspaper. By publishing a Notice to Creditors, creditors are put on notice that they must make their claims within 4 months of the date of the publication or their claims will be barred.

After all known debts, administration expenses, and taxes have been paid or provided for, a final report or account should be prepared. Copies of the report should be made available to all persons interested in the estate.

Normally, distribution of the assets will await the closing of the estate. However, depending on such factors as the size of the estate, the needs of the beneficiaries, tax considerations and the desirability of avoiding the payment of interest on specific bequests, earlier partial distributions may be made.

Being a Personal Representative is a significant responsibility. The decedent is depending on you to settle his or her estate and to distribute the remaining assets to the persons designated. Common sense, conscientiousness and honesty are the main requirements for being the Personal Representative.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity.  If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

May 2018

For those whose spouse has passed away and who are considering remarriage, a Prenuptial Agreement can assure that your estate will go to your children.

If your spouse has passed away and you are contemplating a second marriage, you may want to consider making a Prenuptial Agreement. With a Prenuptial Agreement and proper Wills, you can set out the duties and obligations that you and your new spouse will have upon death or divorce and assure that the property that you bring into the marriage will pass to your children.

A Prenuptial Agreement will typically include the following provisions:

• A disclosure of each party’s assets and income.
• A waiver of claim against each other’s assets.
• How daily expenses are to be paid.
• Whether the parties will file joint or individual income tax returns.
• Whether the surviving spouse may continue to live in deceased spouse’s home.

If you do not have a Prenuptial Agreement or a Will, upon your death your property will pass under the intestate laws of Idaho. Idaho Code              § 15-2-102 provides that the surviving spouse will receive the following share of the deceased spouse’s estate:

• As to separate property if there are surviving issue (posterity), the surviving spouse will receive one-half of the separate property and the deceased spouse’s issue will receive one-half of the separate property.
• As to community property—property that has been acquired during the marriage or separate property that has been comingled—allthe community property goes to the surviving spouse.

In addition, if you do not have a Prenuptial Agreement or a Will that provides otherwise, when you die your spouse has a right to receive $60,000 from your estate—a homestead allowance of $50,000 and an exempt property allowance of $10,000.

A Prenuptial Agreement entered into before marriage establishes property rights after marriage. When you have made your intentions clear and your estate plan is carried out, your property will go to those you have designated, not to someone your never intended.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity.  If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

April 2018